Incoming Material
Companies often ask UA researchers to sign an MTA before transferring proprietary samples, like biological materials, from the company. By using an MTA, the company is protecting its commercial position and the interests of its owners in what is usually a highly competitive market, but is also signaling that it sees some advantage in making the material available to university researcher laboratories. That advantage might lie in the possibility of finding new uses or improved formulations for the material.
Universities and other non-profits also sometimes require an MTA before sending proprietary material, typically as a way to manage the distribution of specialized, patented or patentable biological materials or chemical compositions.
Under those circumstances, an MTA is useful in that it clearly communicates the parties' respective interests and binds the parties to specific duties. The party providing the material usually writes the first draft of an MTA but the receiving party may request negotiation of terms.
When seeking an MTA for receipt of material from another organization, UA researchers should contact the Office of Research and Contract Analisys to review acceptable forms, and should consider the following:
- Researchers should not sign an MTA in their personal capacity: Doing so could expose them to personal liability in the case of a breach. Instead, any MTA for University of Arizona research purposes should be signed by a University officer or authorized delegate on behalf of the researcher, so that the obligation (and potential liability) falls on the institution, with the researcher acting as an agent/employee. At the limit, the researcher might sign the MTA over a line noting "Read and Understood."
- An MTA should describe the proprietary material in enough detail to permit the UA researcher, and others, to make a clear judgment what the material includes and what it does not.
- It is reasonable that the MTA specify that the providing organization retains ownership of the material, and of any progeny of the material, even if the UA researcher incorporates the material into some novel composite (in which case different elements of the composite would be owned by different parties).
- It is less reasonable for UA to accept terms under which the providing organization ownership of, or rights to, innovations made through use of the provided material but that do not include, or have some continuing dependence on, that material itself.
- An inbound MTA may limit what the UA recipient does with the material, but should not impose a specific research program. If it does, then the MTA is acting like a sponsored research project funded only with the material supplied.
- The University of Arizona is not permitted to indemnify the material provider, i.e. agree in advance to reimburse the provider for losses, perhaps even losses resulting from the activities of third parties. More balanced language might state that "Each party is responsible for its own acts and omissions."
- Any inbound MTA must permit UA researchers to publish their own new research results at a time and in a manner of the researchers' choosing. However, a publication can not contain proprietary information received under a CDA, or give readers enough information to easily deduce that information.
- Special care must be taken to ensure that freedom to publish University results applies to students working and to their theses.
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Last modified: June 27, 2008.
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